Ex Parte Mabry

The indictment under which applicant was convicted alleged burglary as a first-degree felony because the premises were a habitation. Thus, applicant, at the time of his offense, was eligible for mandatory supervision and remains so because of the saving clause contained in the revision of the law in 1995.

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Click here for the full text of this decision FACTS:This is an application for a writ of habeas corpus forwarded to this court pursuant to the provisions of Texas Code of Criminal Procedure Article 11.07. In 1990, applicant was convicted of burglary of a habitation and sentenced to 10 years’ imprisonment, probated for 10 years. In 1991, applicant’s probation was revoked, and he was sentenced to 10 years confinement in the Texas Department of Criminal Justice � institution division. Applicant seeks both credit for time spent on parole and a mandatory supervision date. He asserts that, because he was convicted in 1990, he is not covered by the provisions of the current version of Texas Government Code �508.149, and because of the dictates of the law at the time of his offense, neither is he barred from mandatory supervision by that law. HOLDING:The applicant is entitled to relief. TDCJ � CID shall treat applicant as an inmate eligible for release to mandatory supervision and, because applicant qualifies for street-time credit, shall credit him with the time he spent on parole during his latest release. At the time of applicant’s conviction, all burglaries of a habitation were classified as first-degree felonies, regardless of the underlying offense, but only offenses punished under subsections (d)(2) and (d)(3) were bars to release on mandatory supervision. The writ record includes applicant’s indictment for the 1990 burglary. It alleges that applicant did “enter a habitation with intent to commit theft” and did “enter a habitation and did attempt to commit and committed theft” on or about May 30, 1990. By its terms, the indictment alleges burglary as a first-degree felony because the premises were a habitation and does not allege weapons or injury. Appellant argues that he is neither an inmate described under �508.149, nor an inmate described under Art. 42.18(c), and is therefore eligible for mandatory supervision. The amendments contained in Chapter 263 of the Session Laws for the 74th Legislature (1995), which became effective Sept. 1, 1996, contained a saving clause. The law prior to those revisions applies to applicant, whose offense was committed in 1990. Under the statutes in place at the time of applicant’s offense, release on mandatory supervision was barred only for those serving sentences for burglary charged as a first-degree felony because of the presence of explosives or a deadly weapon or because of injury during the offense. The indictment under which applicant was convicted alleged burglary as a first-degree felony because the premises were a habitation. Thus, applicant, at the time of his offense, was eligible for mandatory supervision and remains so because of the saving clause of 1995. OPINION:Johnson, J., delivered the opinion of the court in which Meyers, Price, Womack, Holcomb and Cochran, JJ., join. CONCURRENCE: Keasler, J. “I agree with the Court’s result but I disagree with its analysis. I therefore concur only in the result.” CONCURRENCE AND DISSENT:Keller, P.J., filed a concurring and dissenting opinion in which Hervey, J., joined. “I concur in the Court’s opinion regarding the issue of applicant’s eligibility for mandatory supervision, and I agree that applicant is entitled to some ‘street time’ credit on his sentence, but, for the reasons given in my dissent in Ex parte Spann, I disagree as to the amount of time credit. This opinion is just the first indication of the enormous impact of the Court’s erroneous interpretation of the time credit statute in Spann. The Spann opinion will affect every mandatory-supervision eligible prisoner who is entitled to street time credit. We are just now seeing the tip of the iceberg, as more and more prisoners will receive far more time credit than the Legislature intended to give them.”

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